This article is written by Pujari Dharani, a B.A.LL.B student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. The article talks about all judicial powers of the President such as consulting the highest court for advice, pardoning powers, and powers regarding appointment and removal with constitutional evaluation and landmark case laws.
This article has been published by Sneha Mahawar.
The President of India is the constitutional head of the country. The framers of the constitution of India put the President of India on a higher pedestal. It was evident in the provisions of the constitution of India. Even though the President is an integral part of the legislative organ of government, still he is empowered with executive and judicial powers as well under the Indian Constitution.
This article deals with the various aspects of the judicial powers of the President of India with constitutional evaluation.
Importance of independence of judiciary vis-à-vis judicial powers of President
In a country like India, which follows a parliamentary democratic form of government, the doctrine of the independence of the judiciary is of utmost significance to prevent the intervention or interference of other organs of the government, that is, the executive and legislative wings, in the functioning of the judiciary. India follows a political system based on the features of constitutional government. In such a case, the judiciary also works to keep a check on arbitrary actions of both the legislative and executive. Indeed, this is one of the essential features of constitutional government. Also, in a quasi-federal system, which is adopted by our country, the judiciary adjudicates the disputes between the Centre and states, and its judgment is the final word. Any intervention or creation of disturbance in the functioning of the judiciary would amount to the destruction of the very foundation of the country, i.e., democracy. Hence, the doctrine of the independence of the judiciary is regarded as a significant component in a constitutional government like India. Because of its profound significance, the government took many measures to uphold the doctrine, and anything that acts detrimental to it is regarded as unconstitutional.
Now, you may have a doubt that wouldn’t it be against the doctrine of the independence of the judiciary when the President, who is part of the legislature, is exercising his judicial powers? Why did the framers of the Constitution empower the President with some judicial powers even at the cost of relaxing the doctrine of the independence of the judiciary? What made them do this? Besides this, after reading this article, you will understand and learn what are the powers of the President in India, his powers in emergency times, his pardoning powers, his role in the appointment and removal of judges, and the relevant and most important case laws for better understanding of the concept.
Need for empowering the President with judicial powers
As India has a democratic constitution, it adopted the theory of separation of powers (also known as the theory of division of powers). This theory stipulates that the three organs of government, namely the legislature, executive, and judiciary, should always function independently. Implementing this theory avoids arbitrariness and the concentration of powers in one or a few members of any organ of government. Hence, three organs possess their respective powers, such as the legislature, which exercises legislative powers, the executive, which exercises executive powers, and the judiciary, which exercises judicial powers.
However, the President, who is the head of state, is vested with both executive and judicial powers along with legislative powers. This happened because India does not follow the doctrine of separation of powers in a strict sense. Currently, there is no watertight division between the three governmental branches, i.e., the executive, legislature, and judiciary. Indeed, it incorporated another theory named “the theory of checks and balances,” by which the strict application of separation of powers is relaxed in India. The reason for the same is already stated, i.e., to prevent arbitrariness and the concentration of excessive powers in one organ of the government.
By empowering the President with judicial powers, he can take few decisions on judicial matters independently from the judiciary. The courts would not intervene with the President’s actual decisions on the merits because it is mainly a matter of his discretion. Here, he is not acting as an appellate court by exercising judicial powers; rather, his authority is separate from the judicial process. By this, we can see how the balance of powers is maintained. This is how the theory of checks and balances works.
Would empowering the President with judicial powers be against the independence of the judiciary
Following the instruments of checks and balances can never be considered against the doctrine of the independence of the judiciary or the theory of separation of powers. Indeed, it will be a better add-on to the administration of justice. The checks and balances between the organs of government ensure the smooth, effective, and efficient functioning of government. Similarly, conferring judicial powers to the President will make justice administration fair and just, provided the President uses it judiciously without any unfairness and unreasonableness.
Powers of the President in India
India, which adopted the parliamentary form of government, has two executives, viz., the President and the Prime Minister. The President of India is the constitutional head as he represents the country. The Prime Minister of India with his/her cabinet would be real executives due to their deciding, directing, and determining force in all central executive functions.
As per Article 53 of the Indian Constitution, the President is conferred with executive powers of the Union, which can be exercised by him directly or through his subordinates. Article 53 further states that nobody can take away the powers conferred on the President. However, in reality, the Prime Minister of India and his council of ministers will aid and advise the decisions taken by the President. Nevertheless, every executive power is exercised in the name of the president as mandated by Article 77. Thus, we can say he is the head of the central executive.
The Indian President has the following judicial powers:
- According to Article 143, the President may consult the Supreme Court for advice on some crucial constitutional, legal, and diplomatic issues.
- According to Article 72, he/she also has the authority to commute a court-ordered sentence or to grant a pardon, reprieve, respite, or suspension of the term.
- According to Articles 124 and 217, the Supreme Court and High Court judges, including the Chief Justice of India and the Chief Justice of High Courts, are appointed by the President.
The above-mentioned powers are considered judicial powers of the President because they are more connected to the judicial processes just like the Supreme Court’s functions and other courts’ functions. Let’s understand those judicial powers in detail under separate headings.
Consulting Supreme Court for advice
In addition to the original and appellate jurisdictions, the Supreme Court has advisory jurisdiction. Article 143 confers advisory jurisdiction on the Supreme Court of India. Article 143 is identical to Section 213(1) of the Government of India Act, 1935, a provision that can be found in British legislation named “Government of India Act, 1935,”. The framers just replaced the words ‘Federal Court’ with ‘Supreme Court,’ ‘Governor-General’ with ‘President,’ and ‘decision’ with ‘opinion’.
Article 143(1) stipulates that the President of India can seek the advisory opinion of the Supreme Court whenever he/she thinks that an event has arisen or is likely to arise, that is of public importance and that such a situation requires the President to consult with the Apex Court. This article also says that once the President puts the question before the Supreme Court, the court, upon hearing the matter, will report its opinion to the President.
However, the opinion rendered by the Supreme Court to the President is not a judgment, order, or decree. It is just an opinion on the nature of advice, not a judicial pronouncement. Whether to enforce the opinion is purely in the hands of the executive. i.e., President. Thus, the opinion does not have a binding effect, and the President is not bound to implement it. Y.V. Chandrachud, the then C.J.I, said in Re The Special Courts Bill, 1978 v. Respondent also known as “Special Courts case”, that “the opinions and references made by the Supreme Court under Article 143 are not binding on subordinate courts, the same as the law declared by it within the meaning of Article 141 of the Indian Constitution because those opinions are advisory in nature”. But, the utmost importance of the Supreme Court’s opinion doesn’t lower just because it is not binding on the President.
Also, whether to examine and reply to the opinion of the President or not is up to the Supreme Court. There is no compulsion on the Supreme Court to render an opinion to the President. However, the reasons should be cited by the court in case of denial of giving an opinion. This was held by the Supreme Court in the case of Dr. M. Ismail Faruqui v. UOI & Ors (1994).
In the Re The Delhi Laws Act, 1912 v. The Part C States (Laws) Act, (1950), the first reference under Article 143 was made. Around twelve consultations were made by the President for the Supreme Court’s opinion in accordance with Article 143 of the Constitution.
Pardoning power of the President
“I have always found that mercy bears richer fruits than strict justice.” – Abraham Lincoln
The concept of pardon was introduced in the Indian Constitution not just as an act of clemency but as a part of the constitutional scheme. The primary rationale behind incorporating this provision in the Constitution and empowering the President to pardon a convict is the doctrine of checks and balances on authorities, especially the judiciary, and to execute convicts unbiasedly. The other reasons backing the concept of pardoning the power of the President are as follows:
- To ease the extreme severity of the criminal laws.
- To save people for humanitarian and moral reasons.
- If the conviction is based on harsh, unjust and arbitrary judgments, to prevent injustice caused to an innocent.
- To uphold the tremendous importance of Article 21.
The pardoning powers of the President of India are dealt with under Article 72 of the Indian Constitution. The term “pardoning power” refers to the President’s attempts to alter the punishment or sentence imposed by the court. This power is enjoyed by both the President of India under Article 72 and the Governor of any state under Article 161.
The President of India cannot use his pardoning powers in all the cases decided by courts. There are a few specific circumstances in which the President may use his/her pardoning powers. Those situations prescribed under Article 72 are as under
- when he/she is considering cases where a person has violated a Union law or any other law that enforces the executive power of the Union.
- When he/she is considering cases in which the punishment was imposed by a court-martial or military court.
- When he/she is considering cases in which the punishment given to the convict is the death penalty or capital punishment.
On the advice of the council of ministers
In general, the President is considered a nominal head, i.e., only for namesake. The reason behind this is that he/she acts on the aid and advice of the council of ministers headed by the Prime Minister. Even though all executive functions are put into force in the name of the President of India, he/she cannot exercise his powers independently without the government’s consent. The same applies to granting mercy to any convict. The Supreme Court reiterated that only on the advice of the Council of Ministers can the President of India use his/her pardoning powers in the case of Maru Ram vs Union of India (1980).
Types of Pardoning powers
As per Article 72 of the Constitution of India, the President has the authority to pardon, reprieve, respite, or remit a punishment or to suspend, remit, or commute the sentences of criminals who have received the punishments of the Indian judiciary.
The following procedure is followed by the President:
The other side of the coin: Misuse
The framers of the Constitution conferred pardoning powers on the President of India on the grounds of humanity as well as to rehabilitate the sinner who is also a human. In a way, the pardoning powers support the reformative theory of punishment. Nevertheless, despite the good objectives, this power has remained a source of debate due to its inappropriate use and abuse for political and other unethical reasons. The power to pardon someone has an inherent potential for abuse and exploitation.
However, whenever the Constitution gives such a privilege to a person, whether the legislature, judiciary, or executive, the person using such a privilege or power should exercise it with care and caution. Because if implemented with evil motives, it causes grave injustice to a person or group of persons and directly hits the foundations of democracy.
In the past, misuse of pardoning powers by both the President and the Governor has been seen multiple times. The following reasons behind such misuse of pardoning powers are:
- Political agendas;
- Monetary greed;
- Position of victim;
- Lack of accountability;
- Lack of procedure and guidelines;
- Role of media;
- Misrepresentation by the convict.
Many times, India saw the abuse of the pardoning powers of the President. For example, in Kehar Singh v. Union of India, jurists like Naveen Thakur claim that the guilty parties’ appeal could never have been successful because Kehar Singh, a 21 years aged convict, was liable for killing the then Prime Minister and a prominent leader in Congress party, Mrs. Indira Gandhi, and Congress was then in power at the central level. In this case, ‘young age’ could have been one of the grounds to exercise powers given under Article 72 by the President, but still, the ground was not considered while hearing the mercy petition. Additionally, this issue was not resolved in a coalition government either because the council was unable to provide the President with a fair and impartial opinion due to conflicting political interests. This caused further issues and, in the opinion of many experts and academicians, there is a need for judicial review of the pardoning powers of the President. From these experiences, it has also been observed that the President’s use of pardoning power on the council of minister’s advice is not without its own set of complications and troubles.
Another major misuse or demerit is the delay in deciding and disposing of mercy petitions. It’s taking years to obtain the assent or rejection of mercy petitions filed by convicts. It is not just to keep the mercy petitions open for donkey’s years without any kind of response. So, what is the solution? Is there any time limit in the constitution? Unfortunately, there was no stipulated time limit prescribed in the Indian Constitution or any other statutes. However, this is not sensible if the President doesn’t pass the petitions within a reasonable time period because it amounts to an abuse of power and constitutes an act against “due process” and “procedure established by law” as provided under Article 21 of the Indian Constitution. Also, it is said to be a grave infringement of human rights. Furthermore, in Shatrughan Chauhan & Anr vs Union Of India & Ors. (2014), the Supreme Court held that if the mercy petition is pending for an indefinite period without any valid reasons, then the court would intervene and decide on the petition or fix a time limit to pass the petition by the President and Governors. In addition to this, recently in September 2020, the Supreme Court bench led by then Chief Justice of India U.U. Lalit criticised the delay caused in the case of the mercy petition which was filed by Balwant Singh in 2012. It’s been 10 years waiting for the response of the President.
Even in the cases where the President took a quick decision to grant mercy, the delay persisted. For instance, in the case of Nirbhaya, the President rejected the mercy petitions immediately, but the execution of capital punishment didn’t begin right away. The convicts misused the loopholes in the procedures for mercy petitions. They moved the Supreme Court multiple times through different convicts against the rejection of mercy petitions, which took long years to execute and deliver justice. This case is notoriously known for delayed justice and one of the causes for delivery is loopholes in procedures and guidelines for mercy petitions.
Almost every country recognises the historic authority to pardon crimes, remit punishments, and confer clemency. But, in reality, the pardon is a shadowy, alien entity that looms over the legal system. Even for criminal law professionals and practitioners, its current applicability is questionable because it instantly reverses years of criminal investigation and prosecution. Apart from this, it is described as arbitrary, unaccountable, inaccessible to the common man, highly corruptible, and considered to be highly regarded by both politicians and the general public.
Insofar as scholars have given it some consideration, a pardon is viewed as a constitutional deviation that does not belong to the theory of checks and balances and plays no good part in a democracy.
It is advisable to create rules for the usage of pardoning powers by the President. Provided, every single pardon given by the President of India should be subjected to those rules and regulations because it won’t be feasible to fairly and effectively govern the pardons without the rules.
Even though the highest executive authority, that is, the President, may be using the pardoning power, it must still be used in good faith, with thoughtful and informed consideration for the benefit of the public. Additionally, the authority to pardon is combined with the responsibility to behave justly and sensibly on the part of the President.
Power of the President to appoint judges
Since the Constitution places a greater emphasis on the executive organ of government than the judiciary when making appointments, the appointment of judges is seen as one of the elements of checks and balances. The framers of the Constitution of India provided such a provision to ensure the appointment is made fairly so that the deserving and qualified legal professional will become a judge in judicial institutions.
The provisions that prescribe the appointment of judges to the Supreme Court and High Court are Article 124(2) and Article 217 of the Constitution of India respectively. Article 124(2) states that the President appoints a person as Supreme Court judge after consultation with those people, which includes judges of the Supreme Court and High Courts, whoever is deemed fit according to the President. Whereas, Article 217 states that the President appoints High Court judges after consultation with the Chief Justice of India, the Governor of that particular state, and the Chief Justice of that particular High Court. Additionally, in case the Chief Justice of the High Court is appointed, a consultation will be with the first two stated persons. However, the Constitution ignored the procedure to be followed for the appointment of judges. That’s where the collegium system comes into the picture as a solution for the conflict between the executive and judiciary.
If you want to know the procedure of appointing judges through the collegium system, its gradual evolution through three judges’ cases, and the new procedure after the 99th Amendment Act, click here and here.
Removal of judges
The concept of the removal of judges is borrowed from the American Constitution. This concept is backed up by reasons of accountability and transparency. Hence, the power of removal of judges is given in the hands of the President by the Constitution. However, most of the removal procedures and investigations will be regulated by the Parliament by following the law of the land.
The removal of judges is also said to be one of the measures of checks and balances. According to Article 124(4) of the Constitution of India, the President of India cannot remove a Supreme Court judge himself but only after the Parliament’s approval on the grounds of proven misbehaviour and incapacity, which was neither defined by the Constitution nor by the Judges (Inquiry) Act, 1968. The approval of Parliament should be a special majority, i.e., more than two-thirds of members present and vote.
Here, it is pertinent to note that the Constitution of India protected the independence of the judiciary by creating Articles 121 and 211 which disallow the Parliament to conduct discussions on the misconduct while discharging their duties, of the judges of both the Supreme Court and High Courts respectively.
Procedure for removal of judges
The procedure detailing the removal of judges through the impeachment process is laid down in the Judges (Inquiry) Act, 1968. The impeachment of high court judges is described under Article 218 of the Indian Constitution.
The following is the procedure followed for removing a judge:
For more details on the procedure and steps involved in the removal of judges and related laws, click here.
Flaws in Impeachment procedure
It is shocking to know that until now, not even one judge has been impeached since 1949, although there is prima facie evidence. History shows the early 1990s case of former Justice V. Ramaswami, who was the first Supreme Court judge against whom an impeachment procedure was initiated, as an example of this. He was acquitted as the motion was defeated in Lok Sabha, despite prima facie evidence of fund embezzlement, financial impropriety, and irregularities due to the flaws and loopholes that existed in the removal procedure. Not just this one case, there are numerous incidents where allegations and accusations are made against judges, but none of them didn’t result in removal.
One of the major reasons no corrupt judge is impeached in India is the difficult procedure of impeachment to be followed by the Parliament. Despite this, impeachment proceedings were initiated against several judges but with no results.
In the last few decades, we have witnessed a lot of amendments made to the Constitution or statutes. Multiple legislations on various issues are also in existence. With this, we can clearly tell where there is a will, there is a constitutional or statutory amendment. Nevertheless, there is no judicial or political will to introduce changes in the impeachment procedure. They made amendments to the salaries, pay, perks and other things, but not to the removal process or the investigation held by the Parliament.
The path of the government to ensure judicial accountability and transparency is, therefore, still difficult and lengthy. However, now, it is necessary for the survival of democracy and the rule of law in India.
Ismail Faruqui v. Union of India
In the Babri Majid case, the issue of Ismail Faruqui dominated the then debates and discussions. It was held in the case of Ismail Faruqui v. Union of India (1994) that the Supreme Court of India cannot be bound to reply to the question or give advice as asked by the President under Article 143 of the Constitution of India. Instead, if the Supreme Court feels that a matter is undesirable or not appropriate for such an action, it may decide not to offer its opinion under Article 143. However, the Supreme Court pointed out that reasons had to be provided in case of refusal to render the advisory opinion.
In the present case, on a Presidential request for the Supreme Court’s opinion, the five-judge bench of the Supreme Court declined to respond to the question of “whether a temple originally existed at the site where the Babri Masjid subsequently stood” because it was superfluous, unnecessary, opposed to secularism, and favoured one religious community.
Apart from the above observations, the Supreme Court of India addressed the issue of the State acquiring religious property in this case. Places of worship like churches, mosques, and temples were declared to be immovable property under Article 26 of the Indian Constitution by the court. But, since it is not a fundamental component of the religion, the government is permitted to buy the property.
Re Delhi Laws Act, 1912
The Re Delhi Laws Act, 1912 is the first case to reach the Supreme Court under Article 143 of the Constitution of India through advisory jurisdiction. The court in this case reviewed the legality of a statute in relation to the delegated legislation. Although a bench of seven judges presided over the case, their opinions varied. However, all the judges agreed that the legislature had the authority to give the executive some lawmaking authority, and they disagreed on how much of that authority may be given to the executive. The court mainly expressed the following two opinions:
- To whatever extent it decides, the Parliament may delegate its legislative authority, subject to the condition or restriction that it does not surrender its existence or abdicate its powers.
- The essential legislative role of the Parliament which includes drafting, formulating and enacting the policy and turning them into a legally binding standard of conduct, could not be delegated to other branches of the government.
In Re: The Kerala Education Bill
The Kerala Education Bill case is a significant one under Article 29 of the Constitution of India, which protects Indian citizens’ right to conserve their culture. The decision of the court is based on the application made by the President of India under Article 143 for the opinion of the Supreme Court on the matter. The Kerala Education Bill reference is the second one in history that was made under Article 143; the first one was made by the President in the Re Delhi Laws Act, 1912.
In contrast to the Re Delhi Laws Act decision, where the nature and scope of the reference under Article 143(1) were not considered. Instead, in the current reference, the court first discussed the scope of advisory jurisdiction before expressing its opinion.
G. Krishta Goud v. State of Andhra Pradesh
The case of G. Krishta Goud v. State of Andhra Pradesh (1975) is one in which the Supreme Court decided to express its opinions on the pardoning powers of the President. The petitioner, in this case, asked the Supreme Court to review the denial of clemency by the President because the petitioners are murderers and the President decided not to show pity on them.
While deciding the case, the court stated that the pardoning powers of the President and the Governor were historically a sovereign power, politically a residuary one, and morally a help to intangible justice. Thus, in this case, the court was hesitant to use judicial review on the President’s decision. Justice Krishna Iyer, in the ruling, stated:
“People of a republic serve as custodians and beneficiaries of the power. Hence, no authority in a republic is irresponsible and unresponsive. But our constitution has two limitations. The court is not an omniscient, omnipotent, or omnipresent being that can intervene in any matter and anywhere. And, when the constitution, as in this case, gives the nation’s highest executive authority while implicitly excluding judicial review, it is inappropriate for this court to have unlimited power”.
As a result, the court, in this case, demonstrated considerable reluctance to even consider the judgment of the court. It is important to note that the judgment quoted assumes that the public power was not reckless from the start. In fact, Justice Krishna Iyer finally issued a warning, saying that “the Supreme Court may not stay silent and impotent if total arbitrary law and mala fide execution of power are gruesomely founded.”
Therefore, despite the Supreme Court’s initial hesitancy to use its judicial scrutiny, it ultimately limited the President’s and the Governor’s power to pardon through its interpretation and activist stance.
Maru Ram v. Union of India
In Maru Ram v. Union of India and Others (1980), Justice Krishna Iyer held that public authority, including constitutional power, should not be used in an arbitrary or dishonest manner and that, typically, guidelines for fair and equitable execution are the best assurances of the proper use of power. As it will “exclude the character flaw of discrimination, such as may arise when two persons have been convicted and sentenced in the same case for the same degree of culpability, but one is released and the other is rejected for mercy for such illogical reasons as religion, caste, color, or political loyalty“, the court, for the first time, suggested that the guidelines be put in place for the purpose of the President exercising his pardoning powers.
The Constitutional Bench asserted that the Courts would intervene in cases where political vendetta or party favouritism was evident or where arbitrary criteria like religion, caste, or race had affected the decision-making process. This case also discussed judicial review in the case of abuse of powers while dealing with a mercy petition by the President. Such unethical elements undermine the use of the pardon power and ought to be checked by the judiciary through judicial review.
In contrast to the Krishta Goud case, when the court initially showed great reluctance and eventually accepted that in a few circumstances, it would not be prohibited from exercising judicial review, the Maru Ram case looks to be a step forward. However, it looks clear from the current case that Justice Krishna Iyer is no longer reluctant to use judicial review and strongly urges the government to create guidelines that aim to regulate the exercise of pardoning power by the President of India.
Epuru Sudhakar & Anr vs Govt. Of A.P.
In this case of Epuru Sudhakar & Anr vs Govt. Of A.P. (2006), the Supreme Court ruled that it is a well-established concept that the Supreme Court and High Courts have the right to a limited judicial review of the use of their pardon powers. The following primary guidelines can be used to challenge the President’s or Governor’s clemency decision:
- The decision was made without application of mind.
- The order is made with bad intentions.
- The decision was made based on unrelated factors.
- Relevant information was not taken into account.
- The order was arbitrarily given.
The President, being the highest executive authority, also has a legal duty to preserve, protect and defend the Constitution to his/her best ability as per Article 60 of the Constitution of India. To strengthen democracy, independence of the judiciary, and checks and balances, the Constitution conferred few judicial powers on the President of India so that the concentration of all judicial powers is not in the hands of one organ of government, i.e., the judiciary. However, the President exercises these powers with great caution and does not act arbitrarily while using them. If abuse of powers is committed by the President, being a constitutional head, that will lead to the collapse of democracy in India. Hence, all three organs of government should enforce their respective functions and exercise their powers as prescribed by the Constitution of India while following the measures of separation of powers along with checks and balances.
Frequently Asked Questions (FAQs)
Can a President be answerable to any court?
The President of India is not answerable to any court in India for how he exercises or performs his duties and powers that are given to him. However, only those courts, tribunals, or other bodies designated or constituted by either house of Parliament have the authority to look into the accusations made against the President under Article 61 of the Constitution of India.
Can a court summon the President?
The President of India enjoys a few immunities to discharge his duties without any obstacles. One of them is immunity against legal proceedings. The protection is given by Article 361 of the Constitution of India. The same kind of protection is also given to the governors in India. Under Article 361, it is mentioned that criminal proceedings cannot be initiated against the President. Also, no court can grant an arrest warrant to imprison the President during his tenure. However, the President’s actions, which are done in his personal capacity, can be challenged in any court.
Can the President overrule the Supreme Court?
The human intellect is imperfect. Sometimes, the methods and approaches adopted by the judges may be incorrect because judges are also human beings. But, when a mistake concerns the death penalty, it is crucial to consult the President before executing such a big punishment that affects the life of someone. By using his pardoning powers lawfully, he can overrule the decisions made by the Supreme Court.
Can the pardoning powers of the President be subject to judicial review?
The pardoning power of the President of India is subject to judicial review by the judiciary. However, the court cannot review the substantial merits of the decision taken by the President other than in instances of arbitrariness, bad intent to harm, or ignorance of some crucial information. Even while the courts have occasionally gone over the fine line that limits the extent of their review, as established in the case of Maru Ram, it is believed that such instances are an exception.
Can a judge escape from impeachment?
No judge, including the Chief Justice of India, can escape the impeachment proceedings. That’s how important is given to the concept of judicial accountability. However, many judges in the past used one way to escape the impeachment proceedings i.e., resignation from the post. The reason for that is the law is blank regarding the resignation of a judge against whom the impeachment proceedings had started. Hence, a judge is not mandated by the law to sit through the impeachment process. In this manner, the judges can simply resign from their positions and avoid the humiliation of imprisonment proceedings.
The resignation of Soumitra Sen is one such example. A motion for the impeachment of Soumitra Sen was moved in the Rajya Sabha, an investigation was made, and Justice Soumitra Sen was found to have misappropriated the funds that were associated with a case. Then, the motion was approved by the Rajya Sabha. However, Justice Sen resigned before it was sent to the Lok Sabha for voting and hence the house decided to end the impeachment proceedings against him.
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